United States v. Simmons, 508 F. Supp. 552 (E.D. Tenn. 1980)

John H. Cary, U. S. Atty., Knoxville, Tenn. by John C. Littleton, Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff.

NEESE, District Judge.

The plaintiff moved the Court for a judgment by default herein. Rule 55(b) (1), Federal Rules of Civil Procedure. "*** [N]o judgment by default shall be entered Against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. ***" Idem. "*** In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in the military service. ***" 50 U.S.C.App. § 520(1).

An assistant United States attorney filed an affidavit that no person having a right or possible claim of right herein is in the military service. It makes no reference specifically to whether either "defendant" is in the military service, as required by the afore-quoted Soldiers' and Sailors' Civil Relief Act of 1940, supra; it alludes only to "*** the affiant's best information and belief ***" and sets forth no facts^[*] "*** showing that the defendant is not in the military service ***," as also required by such statute; and it contains not the slightest hint as to upon what fact(s) the affiant's stated "*** best information and belief ***" were acquired.

As was said by our Court of Appeals in a different context: "*** [T]he Soldiers' and Sailors' Civil Relief Act means exactly what is says ***." Ray v. Porter, C.A.6th (1972), 464 F.2d 452, 456. Therefore, the application of the plaintiff for entry of a *553 judgment by default herein cannot be granted on the present record.

[*] Where facts must be set forth, an affidavit made upon information and belief is insufficient. Automatic R. Mfg. Co. v. Hazeltine Research (1950), 339 U.S. 827, 831, 70 S. Ct. 894, 896, 94 L. Ed. 1312, 1317 (headnote 2), (stating the rule with respect to affidavits submitted under Rule 56(e)), Federal Rules of Civil Procedure.